Texas Proposed DWI Deferred Adjudication Needs Some Tweaking…

I was contemplating whether to write this blog here or on my DWI blog, but since it relates to other areas of criminal law I found it more appropriate to post it here. Does anyone really believe that the Mother Against Drunk Drivers (MADD) organization has a drunk drivers best interest at heart? Well when you listen to their publicity machine you may think so. Currently, the organization is trying to bamboozle Texas residents into thinking that the proposed law will help many people accused of a DWI. A closer look into the law will reveal that it will be assisting the court dockets and prosecutors more than the citizens of Texas. A non criminal lawyer or a lawyer that does not practice DWI defense will not recognize that this proposed law will not allow a person that is placed on deferred adjudication to expunge their record or apply for a motion for non disclosure after they successfully complete a probationary period like most other crimes. Typically, when someone is arrested for a crime such as theft or possession of a controlled substance and subsequently placed on deferred adjudication they are eligible for a motion for non disclosure if they successfully complete the program. The motion prevents the public from ever seeing the arrest after the court grants the motion for non disclosure. While it is correct that a deferred adjudication allows someone to say that they have not been convicted of a DWI, what use is it if an employer, landlord, or credit agency can still see the arrest and plea of guilty. Most people that are not attorneys will see this information on public databases and not care that it is not conviction. MADD should ask someone that has successfully completed a deferred adjudication of a family violence assault crime if they appreciate not being able to own a gun, clear their record or rent an apartment. Undoubtedly the answer would be no.

Harris Criminal Courthouse Closed for the Holidays

Please be advised that the Harris County Courthouse will be closed on December 23, 24, 30, and the 31st for the Holidays.  Since Christmas and New Years Day falls on a Saturday this year the courthouse will be closed for more days then in past years.  It seems like the criminal justice center is going to be quiet next week since I have a typical docket this week compared to an extremely light docket the following week.  Nevertheless, I will be “on call” during the holiday season.  Sadly, arrests do not slow down during this time.

I am staying in Houston for the first time in a long time for this holiday season.  Since neither me or my wife have family here in Houston we typically travel this time of year.  I will be unwrapping our gifts under our own tree this year.  I will be pleased to watch the long lines of people at the airport from my living room television instead of being in them this year.

Picking Up The Pieces After An Assault

You may remember LeGarrette Blount who played for Oregon during his college career from a punch he landed on an unsuspecting Boise State Football player that was caught on video and played continuously on ESPN.  Mr. Blount was quickly dismissed from the football team and his NFL draft stock plummetted to the point that he went undrafted.  Luckily, he had a supportive coach, teammates and family that stood by him despite what happened.  This is what makes his success story illustrative.  When someone blatantly assaults another person they are abandoned by most people.  These people only choose to see that snapshot in time.  They forget the person that they knew before the assault occurred.  Most prosecutors do not understand why a wife or girlfriend continue to support the person after they are the victims of a family member assault.  The truth is that they love this person and are willing to move forward so that this behavior does not occur again.  If a person that is accused or even convicted of assault is not supported by those that are close to them things are likely to spiral into an abyss that they may never dig themselves out.  I want to be clear that I DO NOT condone this behavior.  Nevertheless, I understand the family dynamics that are involved.  I do not believe that incarcerating someone for a mistake is the road to travel when they have a support system in place.  If this is the attitude that is adopted by the criminal justice system I am confident that there will be more men like LeGarrette Blount  in the world.

Traffic Issues during Holiday Season at a Houston Galleria Law Office

Having an office in a Houston Landmark has many advantages. Since I am located in the Williams Tower it is easy to describe where I am located and my clients normally have no problem finding me. The parking is free and it is located next to the 610 loop right next to the Galleria mall. Also, by being on the 60th floor of the building I have an incredible view of greater Houston, Texas area and downtown.

The only time there is a drawback to having an office in the Galleria area is during the Christmas Holiday season. After Thanksgiving the traffic around the office doubles even during business hours. This makes it difficult for clients trying to get to my office as well as when I am leaving my office. I am going to apologize in advance for those of you that will be traveling to my office for the next couple of weeks. I promise that after the new year the traffic will return to normal.

Newly elected Harris County Judge ready for trial

Don Smyth, recently elected judge for the
County Criminal Court at Law #13, was appointed last week to finish the remaining term for the bench after
Mark Atkinson retired earlier this year. His first day was Friday, November
12th. Judge Smyth is not wasting any time. He is presiding over his first
trial the first week on the job. Today, I attended his court and saw a
jury panel lining up in the hallway. I imagine that since he has been
a prosecutor for the last thirty five years he was able to “hit the
ground running” when it came to presiding over a jury trial.

On another note, I want to applaud the newly elected judge of County Criminal
Court at Law #4, John Clinton, for taking the time last week to shadow
Judge Anderson, the presiding judge of the court. I imagine it may take
Judge Clinton a bit longer before he presides over his first trial.

New Criminal Judges in Harris County, Texas

What a difference a day makes at the courthouse. Yesterday there was a
lot of uncertaintity regarding the election. The courts I had to attend
seemed to be in a somber mood. Today, the court staff were upbeat, and
looking forward to the future. Every criminal judge in Harris County,
Texas that was seeking re-election won their respective race. In fact,
the races were not even close. It was a sweep by the Republican Party.

There were a few newly elected judges. Paula Goodhart who replaced Regan
Helm earlier this year won her first election for
County Criminal Court at Law #2. Natalie Fleming who replaced Donald Jackson also won the bench for County
Criminal Court at Law #3. John Clinton won the
County Criminal Court at Law #4
bench that opened up after Judge James Anderson decided to retire effective
at the end of this year. Earlier this year Judge Mark Atkinson retired from
County Criminal Court at Law #13. His replacement will be Don Smyth. In the Felony courts there were two
newly elected Judges. Denise Bradley will be presiding over the 262nd
District Court of Harris County, Texas
and Marc Brown won the election for the 180th
District Court of Harris County, Texas after he replaced Debbie Mantooth Stricklin who also retired earlier this year.

Election Day at the Harris County Criminal Courthouse

Since it was raining today I used the tunnel system to get to the courthouse therefore I was unable to see what type of line there was outside the criminal courthouse. I suspect that it was relatively a short one for a Tuesday morning since today is election day and all the Harris County, Criminal County Court benches are up for election. This is the first time since I became a lawyer that these judges have been worried about being re-elected. Once I got into the Criminal Justice building the usual human road blocks to the elevators were not present. In fact, there was an empty elevator waiting for me. I can count on one hand when this last happened to me since the building opened. The courtrooms that I attended were also lacking the crowds that are typical during a midweek docket call. The lack of people in the courtrooms made it easier to speak to the prosecutors. I wish every day was like today. I wonder what tomorrow will bring.

Am I cynical because I am Criminal Defense Attorney or just cynical?

I received an innocent enough email last night from a “student” asking some questions regarding how I became a criminal defense attorney as well as more personal questions asking where I grew up and the like. I enjoy helping a curious student about the legal profession so I replied to her email by telling her to phone my office to discuss her questions over the phone since there were over more than twenty and some were I thought were a little to personal to answer over the internet, especially for someone that I did not know. She quickly responded that she could not call me. I was surprised to hear that her “assignment” did not allow her to contact anyone by telephone and would appreciate it I responded by email only. After reading that final email I simply deleted all previous emails and considered that it must be a scam.

I must admit that I question most everything. Whether it is a news story, or an offense report by the police. I usually find them lacking credibility and I purposefully seek additional verification. Perhaps, after many years of reading so many bogus reports I have become too cynical.

The Lawyer Briefcase

I finally pulled the trigger and bought a new briefcase for work this weekend. I had not bought one in a few years, so I figured it was about time. Frankly, I thought I would never buy another briefcase because I figured I would not have a need when I bought my last one. I also figured that by 2010 our office would be completely paperless. I was wrong on that prediction. I have cut down on the paper I use at the office, but the courts continue to require the same amount of paperwork. Hopefully, in the near future the courthouse will be paperless as well.

I had spotted the briefcase last year, but talked myself out of spending so much money on something that I really did not need that much. I continued looking around for a better deal, hoping that the case would go on sale, but that never happened. I was surprised by the lack of “Attorney/Lawyer” briefcases on the market.

I have a rolling briefcase for trial that is much bigger then the traditional lawyer briefcase. This allows me to carry many of the items that I will need for trial. I have a Spring/Summer briefcase and well as a Winter one. The Spring/Summer briefcase is a tan color while the Winter one is a traditional black one. I decided that I needed a brown briefcase too. Nevertheless, it is not as easy as picking a color and going with that. In my quest to find the right briefcase I found that I am not a fan of the over the shoulder style. I do not like how my suit looks while a briefcase is dangling from my shoulder. Also, I needed at least two dividers for my files. I needed one for the cases that are pending and the other are for the pending cases. Additional features that I required is that it had to have a pen and business card holder. I have one case that does not have this feature and find it annoying when searching for these items. The one I bought has all this and more. I am very pleased with my purchase, and hope it lasts me for many years.

Where did you come from?

Yesterday, I was attending a seminar in the
Harris County Criminal Justice Center
dealing with “How to deal with a tough prosecutor.” We were
half way through the seminar when who comes strolling into the room? Pat
Lykos, the elected Prosecutor of Harris County, Texas. She strolled in
like she was taking a walk in the park. It was an odd sight to see the
District Attorney of Harris County
strolling in while a bunch of Harris County Criminal Defense Attorneys
were in the middle of discussing how to handle her difficult assistants.
I am not sure what caught me off guard more…the fact that she was so
clueless to be walking through our meeting or that she had such easy access
to a part of the building that she does not work in. She was gracious
enough and even apologized for walking into our meeting after realizing
the topic. Nevertheless, how does this happen? Was she snooping? Did she
hear anything? It was a secure area and a private meeting. I am not a
conspiracy theorist, but it is quite ironic that this happened given our
subject matter.

The Martinez Firm now has its own Facebook site

I am not sure if this is that big of a deal, but we are now on
Facebook. I will be posting short messages on there much like Twitter.

Speaking of Twitter, I finally found a way that it may be helpful to some
lawyer or people in the legal field. Recently, I came across a story where
they are using Twitter to report on a
Murder trial that has banned the use of Television cameras. This has allowed those
that are interested keep up with what is going on throughout the trial.
I have been one of those lawyers that do not find and a need for Twitter.
More importantly, I find it difficult to post during my time in court
when most of the interesting things are happening. As a criminal defense
attorney I find it odd to comment about pending cases via a social network.

Wearing Pink for Breast Cancer

This would probably be more appropriate for a tweet, but I have not started doing that yet. Frankly, I do not think I will find the time to do much tweeting in the future. I think that should be reserved for celebrities or people with a significant following. Maybe if every person with the last name of Martinez was following me on Twitter I would give it more thought.

After experiencing the Susan G. Komen walk/run last weekend and seeing NFL players wearing pink throughout the month of October I dedicated to wear pink for Breast Cancer month myself. I usually stop wearing pink after the summer is over, but with the weather in Houston it still seemed appropriate. Surprisingly, two people noticed what I was trying to accomplish.

Saturday in the Houston Galleria

One of the benefits of having my office in the
Williams Tower is the adjacent
Water Wall Park. Frequently, I see people taking pictures, enjoying the day with their
families. When I came into the office today I noticed that the Water Wall
was not working. This has been the case for the past week. After speaking
with someone with the building management it looks the Water Wall may
be out of commission for at least a few days. For now it looks like one
of Houston’s Landmarks will be on the disable list. I hope that not
too many people are disappointed this weekend. Regardless, come hang out
in the park and enjoy the Fall weather. You can park for free and walk
to the Galleria to do some shopping.

I promise to post when the Water Wall is working again. It is regular
maintenance so it should be up and running soon.

Judge Goodhart makes good on her promise

I talked about the seminar that I attended a few weeks ago where Judge Goodhart and Judge Fleming spoke to the Harris County, Texas criminal defense. Their purpose was to give criminal defense lawyers some insight into how they will be running their courts. If you would like to read what I wrote click here. In that meeting Judge Goodhart mentioned something that caught my attention. She said that she would consider removing an interlock device from a person’s vehicle after a certain amount of time. I decided to approach her today concerning one of my clients that I was able to get their DWI case dismissed the day before. While this was not the exact scenario she mentioned at the meeting I figure it was equitable to request a removal of the interlock for a person that had their DWI dismissed, but was originally ordered to obtain an interlock for their occupational license. Not surprisingly, Judge Goodhart did the right thing and allowed my client to remove the interlock device from his vehicle for the remaining time that he will need the occupational license. It was refreshing to hear something innovative from the judge and then witnessing her follow through on her statement.

You Should Stand in Line

One of my clients was 5 minutes to court today because of the incredible line outside to enter the Harris County Criminal Justice Center. The lines outside the courthouse are notorious. However, this week it has been worse because one of the entrances has been closed. The line wrapped around the building, This did not dissuade the court staff from reprimanding my client for his tardiness. They even tried to scare him into thinking that if he is late again that his bond will be revoked. I was flabbergasted by their comments. I could not let it go so I asked them had they seen the line outside the building today. They did not seem to care. The reason they lack any compassion is probably because Harris County employees are given a clearance. Thus, they do not have to wait in the horrendous lines outside the building. I wonder if their opinion would change if they had to wait in line for close to a hour to enter the courthouse.

National Night Out 2010

I took some time to meet some of my neighbors on National Night Out. It
is nice to take some time to talk to people that I have not seen in a
while or merely wave to as I walk my dog. We had the pleasure of having
Houston Police Chief, Charles Mcclelland, Jr., attend our party for a while. He made a short speech to the residents.
He brought some of his staff with him. One of the police officers that
attended with the chief approached my wife, my dog, and me. We started
the usual chit-chat when he started discussing his theory of why crime has
increased over the past year. I was curious for an honest opinion so I
made sure that I did not tell him that I was a criminal defense attorney.
His position was that the increase in crime can be attributed to Harris
County District Attorney’s Office decision not to accept charges for
crack cocaine charges. Since I was not on the “clock” and I did not want to seem rude
on a festive night I decided against stating that his comment is only
partially true. The Harris District Attorney’s Office has recently
decided not to accept charges for a trace amount of cocaine. A trace amount is barely seen by the naked eye. It is usually found on the instrument that is used. Any amount above a trace is still a state jail, and possession of less than a gram charge will be accepted. Furthermore, a police officer may still arrest a person for a trace amount of cocaine. Thus, if an officer really wants to take someone to jail for a drug charge the opportunity still exists.

Your time is valuable

I never understand how medical offices get away with making clients wait during an appointment. I can understand that a doctor has to deal with unexpected emergencies during the day, but they need to have a system in place to inform their clients that there may be a delay before arriving at their office. I have not been to a doctor’s office that accepts “walk ins,” therefore, they know ahead of time if there is a delay and could easily phone the client to give them a “heads up.” I have been fortunate lately to go to offices that will inform me if the doctor is running late so that I can make an informed choice whether I want to sit and wait or reschedule my appointment. Unfortunately, my wife was not given this choice last week despite her doctor routinely over booking and making her wait. Instead of the doctor’s office contacting her regarding the delay they allowed her to travel to the appointment, spend fifteen minutes finding parking, then, on arrival, was told that there would be a two hour delay without any apology.

I can not understand how the medical profession get a free pass when it comes to booking too many patients on a given day. Is it they have forgotten that patients are customers? Perhaps, it is the insurance companies fault for cutting their fees, but the doctor needs to remember that they are in still in the customer service business. Their customer’s time is just as important as theirs. It is also a basic courtesy to apologize to the client when a scheduled appointment is no longer available due to a delay.

At our law firm we only take appointments in the afternoon to give our clients our full attention. More importantly, if I am trial on a given day my assistant calls every appointment to inform them and reschedule their important. If this is not done please request my personal mobile phone number to discuss the issue. My client’s time is too important to be wasted.

Respect Life Sunday

Today is ”
Respect Life Sunday” in the Catholic Church. I could tell when the priest starting speaking
about capital punishment that people were not as comfortable with this
issue as they were when he was speaking about stem cell research or abortion.
It is not difficult to be against these topics because they mostly involve
the unborn and helpless. Nevertheless, I find it unnerving that so many
catholics are not opposed to captial punishment. In fact, American Catholics
as well as the rest of the United States are equally divided on this issue.
I find it appalling not because I am criminal defense attorney, or a Catholic,
but because I am a human being and can not believe we think that we have
the right to end someone elses life. It was Dostoyevsky that said that
society is judged by how it treats its prisoners. I am going to be embarrassed
to have to share with my grandchildren that I once lived in a society
that executed people.

Respect Life Sunday

Today is ”
Respect Life Sunday” in the Catholic Church. I could tell when the priest starting speaking
about capital punishment that people were not as comfortable with this
issue as they were when he was speaking about stem cell research or abortion.
It is not difficult to be against these topics because they mostly involve
the unborn and helpless. Nevertheless, I find it unnerving that so many
catholics are not opposed to captial punishment. In fact, American Catholics
as well as the rest of the United States are equally divided on this issue.
I find it appalling not because I am criminal defense attorney, or a Catholic,
but because I am a human being and can not believe we think that we have
the right to end someone elses life. It was Dostoyevsky that said that
society is judged by how it treats its prisoners. I am going to be embarrassed
to have to share with my grandchildren that I once lived in a society
that executed people.

If I enlist in the Military will my criminal case be dismissed?

I do not know if this is one of those “urban legends” or something seen on television, but I have not heard of a case dismissed because the person accused of the crime will be entering the military since I have been a criminal defense attorney. That is not to say that a prosecutor will take into account the fact that a person accused of a crime is due to deploy for the military. If a person is set to deploy a prosecutor may take that into account to offer a more reasonable plea. Nevertheless, trying to negotiate a dismissal based upon a promise that a person will join the military is fruitless. The main reason prosecutors do not make these type of arrangements is because they have no way to enforce the agreement if the person decides not to go into the military or quits after entering and having the charges dropped. Also, it is my understanding that most military branches will not accept a person that is any type of criminal community supervision, probation.

Meeting with Harris County Judges Goodhart and Fleming

The Houston Young Lawyers sponsored a meeting today with Judges Paula Goodhart and Natalie Fleming.  Judge Goodhart was recently appointed to Harris County Criminal Court at Law #1. Judge Fleming was appointed to Criminal Court at Law #3.  While I do not qualify as a “Young Lawyer” I thought it would be a good idea to get some insight on their courts.  I have known Judge Goodhart since we were both prosecutors and Judge Fleming has routinely been a visiting Judge since I have been a lawyer. 

Each of the judges gave the lawyers a perspective on how the plan on running their courts. For instance, Judge Fleming stated that she will not be accepting any plea agreements after a criminal case is set for trial in her court.  Judge Goodhart stated that she would consider removing a interlock device from a person’s vehicle after some time if they do not have any violations which is something that I not heard from a Harris County Judge before today.  Typically, interlock devices are ordered if a person blows over .15, on their second DWI, or as a condition of an occupational license.  There are some occupational licenses that last a year or more so this is something to keep in mind.  Hopefully, this is something that other judges consider.

Both judges are running for their respective benches in November.  I wish them luck!

Houston DWI Prosecutor using a person’s profession against them

I had to deal with a rather unreasonable prosecutor today. Her position was that my client did so well when submitting to the police officer’s standardized field sobriety tests was because of his profession. Frankly, I do not care if someone is an accountant, gymnast, or zoo keeper the reason for the tests is to determine if someone is intoxicated. If the tests do not reveal a clue that person should not be arrested even if they admit to consuming a beer or two. A person that is athletic and does well on the tests displays that they have not lost the normal use of their physical faculties. How else is someone suppose to perform on the tests if they are not intoxicated. This type of behavior by the police will only encourage the citizens of Houston to refrain from submitting to the DWI tests. I have always said that if a DWI task force officer’s is beyond militant. They lack any compassion for a person that admits to drinking after they are stopped for a traffic offense.

Of course, I am recommending to my client that she not even consider the DIVERT program that will be offered to her.

The straight shooting prosecutor

It is sometimes difficult to trust a prosecutor since we are adversaries and essentially have different agendas. After being a criminal defense attorney in Houston for over ten years I have come to realize that the majority of prosecutors can be trusted after you get to know them. Thus, I am sometimes hesitant to reveal certain facts to a prosecutor I do not know that well. Once I know the prosecutor and trust them I can disclose potential defenses to my client’s case that may help in getting their case dismissed. I enjoy when I know and trust the prosecutor that is being upfront enough to request something from me and my client that will cause them to dismiss the case. That is exactly what happened today with a theft case that I was handling.

I have also noticed that the new generation of prosecutors are more mindful that not all police officers are truthful. This makes it easier to discuss with them that the police report is ripe with inaccuracies.

Why are they using that Assault case that was dismissed in Houston against me?

I hope this does not become a trend in Harris County, Texas, but I have come across two cases this month where someone’s family violence assault case that was previously dismissed was used to make their current charge a felony assault. Recent changes in the law allow someone to be charged with a felony if the Government can prove that the assaults occurred within a year of each other.

When I became a criminal defense lawyer in Texas the only way a assault case became a felony was if serious bodily was caused or if someone was threatened with a deadly weapon. In response to the increase in domestic abuse cases the legislature made it a felony if someone assaulted a family member after being previously been convicted of the same offense. Please note that it does not have to be same family member or even that it had to be an actual member of someone’s family. In fact, a dating relationship is enough. For instance, I have come across that a person has been charged as a felony for hitting his brother’s girlfriend that was currently living with the family.

The Houston DWI Vacation

I never think of Houston, Texas as a vacation spot like Miami, Orlando, or Los Angeles, but this summer I have seen an increase in people getting arrested for DWI in Houston while vacationing. The trouble with this happening apart from the obvious is that the Harris County, Texas courts do not accommodate someone that lives outside the state. In other words, the person must make all of their court appearances. The first court setting after a DWI arrest in Harris County, Texas is a week later. Most people do not vacation that long and need to return home. Their case will not be transferred to their home state. In fact, they will be required to return to Houston, Texas for every court setting. This becomes an expensive proposition. Also, any license suspensions that occur in Texas will follow them to the state where they reside. Lastly, they may face additional consequences in their state for any DWI conviction that may occur in Texas.

The first setting dismissal in Harris County, Texas

Today, I was fortunate to defend a case where the police report mirrored what my client said to me in our first interview. I must admit that this is not typical. What happens more often is that the police report is an embellishment of the events and puts my client in the worst possible light. Thus, my client is the one that gets charged with the crime. In the case that I handled today, the charges should not have been presented to the Harris District Attorney’s Office and the prosecutor reviewing the case should not have accepted the charges despite the case being presented to them by the police officer. While I was able rectify the mistakes made by the police officer and the prosecutor it came to a lot of expense to my client. The client was fortunate to have a reasonable prosecutor be able to review the police report and make the correct the decision to dismiss the case without further investigation.

Mug shots tell nothing about the accused

Since I DVR all my favorite episodes I rarely watch live television and try my best to watch commercials when I do. Today, I was watching live television and heard a news story stating that they will reveal what mug shots tell about the celebrities that were arrested. In my 15 years of being a criminal defense attorney I have not found a mug shot to show anything about a person that is accused of a crime. Most commonly mug shots are showed by the prosecutors in DWI trials. The most they illustrate is that the person is embarrassed, tired and humiliated. The last thing they want to be is smiling for a mug shot. On the other hand, if they are smiling the prosecutor would be able to use that against them by stating that they accused did not care that they were being arrested of that they were so intoxicated that they did not know that they were being taken into custody for drunk driving.

Please ask a question

One of the most frustrating emails I get is when a person writes a long email, but never asks a question. Today, I received one from avvo.com, an internet site that is intended to help the public with legal issues and finding an attorney. In the past, I have provided information as a criminal defense attorney on that site on various criminal law issues so I still get contacted by people seeking my advice. The person took the time to write the email, but forgot to tell me some pertinent information like the city where the alleged crime occurred, what police agency arrested him, what criminal court was the case assigned to or even if the case is still pending. Most importantly, the email did not contain a question that I could answer, even if I could. If you are considering sending me an email please include the city, state, and county where the arrest occurred. I unable to answer a legal question if it is outside of the State of Texas. Also, please detail the charges against the accused so I can properly discuss the case with you in the future.

Prove it or else I do not need to testify

One of the most difficult legal concepts for anyone outside the criminal justice system is our right not to testify in a criminal case.  Most people know this right as pleading the “5th.”  As a criminal defense lawyer I have a lot of potential jurors tell me during voir dire (when a jury is picked) that they would have to hear from the defendant before finding him/her not guilty of the alleged crime.  I can understand their position since we have been taught from our childhood to defend ourselves when accused of something we are accused of doing.  Nevertheless, any juror that has this position would be disqualified from sitting in a criminal case.  This does not make them a bad person or a bad juror.  In fact, they would be qualified to serve as a juror in an non criminal case where a defendant is not afforded the fifth amendment privilege.

If one thinks this through it is clear why a defendant in a criminal case should not have to testify against themselves.  The burden of proof is on the State that is bringing the charges against the person.  If the State fails to prove to a jury that the person is guilty beyond  a reasonable doubt the defendant does not have to do anything because the jury’s verdict should be not guilty.  Thus, the defendant’s testimony is immaterial if after closing their case the State did not meet their burden.

An example of this is the trial of former Illinois Governor, Rob Blagojevich.  After campaigning for several months that he would be testifying on his own behalf he decided not to testify after the prosecutors finished their case.  This is his right and hopefully the jury does not hold that against him.

Harris County, Texas Probation Conditions

A lot of my clients want to know what the conditions of a potential probation may be so I have decided to provide a list of the common requirements to successfully complete a probation in Houston, Harris County, Texas.  Please be advised that this is not a complete list, but only an outline of what is likely expected of a person that goes on probation.  Each case, court, and prosecution is unique so there is a likelihood that there may be additional requirements.

The typical probation rules are as follows:

1. Do not commit any new offenses while on probation (typically traffic tickets are excluded unless a person is on a DWI probation and they are not allowed to be driving.

2.  Do not drink alcohol or use any drugs that have not been prescribed by a doctor.

3. One must report to their probation officer in person every month as directed.

4. Allow the probation office to visit their home, work, or elsewhere.

5.Work faithfully or show all attempts made to secure employment.

6.  Support all dependents.

7. Submit to random urine drug/alcohol analysis.

8. Participate in a community service program.

9. Remain in Harris County, Texas. (permission is needed to leave the county).

10. Pay all court cost and fees.

Harris County Criminal Courthouse lines

After being on vacation for two weeks I always anticipate my first day back at the courthouse to go smoothly despite this never being the case. Sure enough, after turning the corner from the Harris County Parking Garage I can not believe the line that has formed at 8:30 am. Typically, the lines outside the courthouse are long, but the one today was three times longer than any that I have previously witnessed. While I do not have to wait in the line to the courthouse since I have a pass I feel terrible for those that have to wait in a line that is longer than a ride at Walt Disney World to enter a criminal courthouse with the Houston heat and humidity. I still have to squeeze through everyone just to reach the doors of the courthouse. On this day, the elevator banks were calm compared to previous days and I was able to get to court without incident. Unfortunately, I had a client that was caught in the line. I was able to text him when he was not present for docket call and keep his bond for being forfeited.

Something really needs to be done about the lines that form at the courthouse. I am confident that the judges see these lines since they drive past the front of the building when the enormous lines are being formed. I hope they are not forfeiting bonds when someone in stuck in line. A simple suggestion would be to allow people to enter from the back of the building. Currently, only those of us with badges can enter from that side of the building. While this will not cure the problem it may help the flow of people in the morning.

Harris County, Texas Judge retiring from the bench on her own terms.

After more then twenty of year of being a public servant Judge Deborah Stricklin, 180th District Court of Harris County Texas has decided to retire.  Earlier in the year she had made it known that she would not be seeking another term to the bench.  She is married to Don Stricklin, former Judge of the 337th District Court of Harris County, Texas.  She was not playing on leaving the bench so soon, but her timetable was moved up by an unforseen change of circumstance for the better.  I wish the Stricklins are enjoyable retirement.  It is not common that people leave their chose profession on their terms.

It  seems logical that Governor Perry will appoint Marc Brown, who is running for the bench as a republican to the bench.  This would give him an advantage over his opponent.  Curiously, that would make another set of spouses on the bench.  Mr. Brown is married to Susan Brown who presides over the 185th District Court of Harris County, Texas. 

Houston Police Forbidden To Talk To Criminal Defense Attorneys without Permission

The Houston Chronicle has reported a a new Houston Police Department policy forbidding officers from talking to lawyers for defendants without “express permission” from prosecutors. Some lawyers are questioning the legality of the policy. I question the policy from a public relations standpoint. Why would the police want to appear that they are hiding something? If they are doing their job, there should not be anything to hide.

Police officials often talk of community policing and the trust of the public for law enforcement. Without trust the police lose valuable witnesses that may not be willing to come forward. Additionally, the state has a greater likelihood of losing trials when jurors just don’t trust or believe police witnesses. I, like many was raised to respect law enforcement. The police should work to foster that trust rather than working to make people wonder what they may be hiding.

Lohan Sentenced to Jail

Lindsay Lohan was sentenced Tuesday to 90 days in jail for violating terms of probation over a three-year-old drug case. After leaving jail she, Lohan will spend another 90 days at an in-patient rehab facility. According to reports her mother was shocked at what she considered the severity of the sentence. The bottom line in any case, if you are on probation don’t put yourself in a position where a judge can take your liberty.

27 Years in Prison and No Parole

A Harris County man was recently released from prison after spending 27 years in prison for a crime he didn’t commit after DNA evidence cleared him of aggravated sexual assault. The case received quite a bit of publicity. This was due to the injustice that the man endured and the length of time he spent he prison.

However, no one in the media reported the fact that the man had spent all that time in prison without  receiving parole. There is a misconception in the general public that those convicted of felonies and sent to prison, only serve a small fraction of time and are released. I believe that this leads juries to punish defendants with greater sentences because they mistakingly believe felony convicts will be released early.
Under the parole law at the time of the man’s conviction he was required to do one-third of the time and not more than 20 years before he was eligible for parole. The man was sentenced to 75 years in prison. Under that law after 20 years he would have been eligible to be released under parole supervision. Obviously he was not paroled and an additional 7 years passed and still no parole. He was only released after old evidence was tested which proved his innocence. 
Under the current parole law he would have to do half of his sentence but not more than 30 years before he was even eligible for parole and his case demonstrates that after 30 years he would likely not parole the first time he is eligible. 
The truth is if  someone is serving time for a violent or sexual offense he will end up doing the majority of his sentence. 

Houston DWI DIVERT drug testing

More than one of my clients that has entered the DWI DIVERT program in Houston, Harris County, Texas has asked me what type of drugs will they test for when they do get tested. I must admit that I treat this is a loaded question. The truth is that I do not have an exhaustive list of all the drugs that will show up in a person’s urine after they are tested. Nevertheless, what I tell my clients after any DWI in Houston is make sure that you have a prescription for any drug that may show up if you are tested for drugs.

In the past, I have had clients adamantly deny using an illegal drug despite the presence of it in their urine test. On a few occasions, the treating physician of the client has been able to explain why this may occur. Even though the doctor may have a valid explanation why this may be the case a judge still required the client to get a hair follicle test.

How is a Houston Criminal Lawyer suppose to act in a courtroom?

I was floored today when a felony judge told me that I was being too aggressive while trying to prevent my client from being to sent to prison. Last time I checked that was my job! In fact, this is the first time in 15 years of being a criminal defense lawyer in Houston that I was told something like this. Most judges understand the dynamics and appreciate a lawyer that is advocating for their client. I was not being offensive or rude to anyone. I understood that my client was wrong for violating his probation, but I was merely pointing out to the judge all the alternatives to prison that were available to him. Luckily, the prosecutor handling the case did not have the same position that the judge did so my client may avoid prison time in the future.

If you need the assistance of a Houston criminal defense lawyer please contact our law firm.

Is Houston,Texas ready to go this low for a DWI?

The United Kingdom is considereing lowering the legal limit for driving while intoxicated (DWI) to .05. That would be less than a pint of beer of beer at dinner. I am sure M.A.D.D is all over this and will even cite to it when it approaches states like Texas when trying to influence them to lowering their own legal limit.

Currently, our State blood alcohol limit is .08. As late as the last decade the legal limit in Texas was .10. I do not see this being lowered again in the near future. I think most reasonable Texans would agree that one or two drinks at dinner should not be illegal.

A sweater in Houston during the summer?

If you happen to visiting the 337th District Court of Harris County, Texas in Harris Criminal Courthouse you may need a sweater despite the typical summer day in Houston being in the 90’s.  Yesterday, I was in Judge Herb Ritchie’s court and it must have been in the 60’s.  You could feel how cold it was once you open the door entering the vestible.  While I was comfortable since I was was wearing my suit, all of the females that work for him were wearing a sweater or hoodie.  The defendants that were in court seemed like the crowd in a Packer’s game during December. I actually think a lot of the Houston criminal defense lawyers appreciate the cooler temperture entering Judge Ritchie’s court after talking to them in court.  I think I will make his court my first stop in the morning after walking in the Houston heat. 

If you need the help of a Houston Criminal Defense Attorney please contact our law firm.

How do I bond my _____ out of jail in Houston, Harris County, Texas?

The general public has no idea how to bond someone out of jail. They receive
a phone that frantic phone call from a relative, friend, or loved one
requesting to be bonded out of jail in the middle of the night. Essentially,
a person has three options when bonding out of jail. They may get lucky
and be granted a pretrial bond. A pretrial bond allows a person to bond
out of jail without having to pay any money.

Please keep in mind that typically a pretrial bond is for a low level misdemeanor
and given to people that have never been previously arrested. Also, a
pretrial bond also takes much longer to process. Next, a person may post
a cash bond. I have been told that this is the quickest way to bond someone
out of jail. A cash bond is straightforward. A person for the arrested
individual goes to 49 San Jacinto in Houston, Texas after the person is
booked and pays in cash the amount of bond. For a first time offender,
a misdemeanor bond for something like a
DWI should be from $500 to $1,500 depending on the charge. A felony bond starts
at $2,000 and goes up from there. The cash bond will be returned once
the criminal case is concluded provided that the person makes all their
court appearances and their bond is never revoked. If the cash is not
available a person may use a bonding company to make a bond. Typically,
a bonding company charges a fee of 10-20% of the bond amount for their
services. Collateral equal to the bond amount is also required by most
bonding companies in Houston, Harris County, Texas. Most of these companies
are open 24 hours a day. A
Houston criminal defense lawyer may not post a bond for a client.

Houston Criminal Defense Lawyer Refreshed

There is something that sunshine does to my body. The sun invigorates my body. Perhaps, it is my Cuban ancestry? Nothing helps me recharge more then taking a long weekend away from work and soaking up the sun somewhere. That is precisely what I did this past weekend. While during Memorial Day weekend a large number of DWI arrests are made in Houston I thought it was important that I take some time for myself. Since I do not work for a corporation if one of us are not in the office the work does not get done. Most potential clients want to speak with a DWI attorney before they hire them so going on vacation is twice as expensive for me. I have a few trial coming up in August so I hope to take some time off again around the 4th of July holiday. If I do not take care of myself everyone suffers.

Lindsay Lohan- How not to act in a Houston Court

A lot of clients get annoyed when their court case interferes with their working schedule.  Most court appearances are scheduled for weekday mornings and take anywhere from one hour to three each time.  Also, most criminal court cases take several months to resolve therefore, so can severely impact professional/work obligations.

A perfect example of how to make matters worse for your criminal case is Lindsay Lohan.  Ms. Lohan has been her own worse enemy.  She has missed court dates, arrived late to court dates she did attend, and she also been rumored to be drinking while on bond.  Due to the perceived lack of respect for the court Ms. Lohan will be paying a significantly higher price than she anticipated.  Today, she was ordered to be fitted with a SCRAM device, weekly drug testing, daily alcohol classes, and lose out on work opportunities that she had scheduled in Texas. 

It is best for a person to understand that while their case is pending there will be some inconveniences, but is best not to have the judge apply extra conditions by not following the court rules since this will in turn make the situation much worse in the long run.

Hello…My Houston Federal Friends

I had to go to the United States Attorney’s Office located in Houston, Texas early this week with a client.  I had forgotten how many former Harris County, Texas prosecutors have gone to work for the United States Attorney’s office since I left the District Attorney’s office many years ago.  I came across a half dozen lawyers that I have worked with or against over the last ten years during my ten-minute wait in the lobby.  It seems like there are few roads a Houston prosecutor travels after they leave the office, some, like me, become criminal defense lawyers.  Others, go to the United States Attorney’s office.  A few go into civil practice.  While there are some that stay at the office that is definitely not the norm.  Ultimately, every person has to decide what is best for them in the long run.  I can only hope that my colleagues enjoy their career choice as much as I do.

If you need to speak to a Houston Federal Attorney please contact our law firm.

How long does it take to bond someone out of jail in Houston, Texas?

Our criminal defense firm regularly gets a phone call from someone that just had a person they know get arrested for a crime asking the above question. As I would do on most subjects if I was not a criminal defense lawyer they turn to the internet for information. Unfortunately, the internet lacks suffiecient information to answer their query. The short answer is that it could take anywhere from 12-48 hours to bond someone out of jail in Houston, Harris County, Texas. The keys seems to be if you are able to make the bond before the person is transferred to the Harris County jail. Most people are arrested and booked in the local city jail. If a bond is made while the person is waiting in this city jail and before they are transferred to the county jail the time waiting in jail is signficantly reduced.

If you need the assistance of a Houston Criminal Defense lawyer please contact our law firm.

How Did Lindsay Lohan Avoid Jail?

Party girl, Lindsay Lohan is in criminal hot water again. Apparently, she is not doing very well with her probation. Fortunately, she was notified about her arrest warrant while working in France. I would not expect the court to call one of my clients to inform them they are about to get arrested. Perhaps, this is done in California, but it is not done in Harris County, Texas. Once she was made aware of the situation it allowed her family to post a non arrest bond on her behalf, saving her from returning to jail. A non arrest bond allows a person to make a bond without going to jail. If you find that there is a warrant for your arrest contact a bonding company to avoid going to jail. Simply them you wish to make a non arrest bond. I have previously discussed non arrest bonds here.

If you need a Houston criminal lawyer after bonding out of jail please contact our law firm.

Dude…do not smoke before court!

Today, I was in the elevator with someone that was still reeking from smoking marijuana the night before or the morning of court. Please keep in mind that when using the elevators in the Houston, Harris County Criminal Justice Center you are also sharing it with prosecutors that may inform your court that you may test positive for drugs if they request a urine sample from you. A court may revoke your bond if you test positive for any type of non prescribed drug. Do yourself a favor and do not smoke before court to avoid going back to jail.

Harmon’s No DIVERT Policy Allowed

udge Bill Harmon, Harris County Criminal Court Judge #2, has been the only judge that does not allow the DIVERT program in his court. I have written before how frustrating this is as a Houston DWI Attorney to tell your client that because of the court their case falls into they are not eligible for a program that would save them thousands of dollars and could potentially lead to the expungment of their DWI case.

Recently, a visiting judge ruled that Judge Harmon has the authority to disallow the DIVERT program in his court. I have a feeling that this is not the last we heard of this issue. I still hold out hope that Judge Harmon will change his mind as the program heads to its one year anniversary. Regardless, the decision is being appealed to a higher court.

If you need the help of a Houston DWI Attorney please contact our law firm.

Keep Your Mouth Shut

Being charged with Murder or worse Capital Murder is a very bad position to find ones self in. You would not be helping yourself or your attorney in your defense if you decide to start talking to the media.
Watching the news last night I saw a news story regarding a man who allegedly shot and murdered his wife who was 7 months pregnant. According to the story the couple had 3 young children.
In response to a question from the media while in custody, the man said something to the effect that the victim had it coming for a while. I am paraphrasing and don’t remember the exact quote, but what a terrible thing to say.
If the case is at appears to be, at least as it was reported, there were witnesses and the state will have a strong case. The man is presumed innocent, but the case looks like it will be more about punishment than guilt/innocence.
I’m certain that a statement like that will be used by the state as the defense attempts to offer mitigation evidence if the case reaches the punishment stage. The lesson is simple: keep your mouth shut.

Houston Criminal Defense Seminar

As you may know lawyers are required a certain amount of continuing legal education every year. Over the years, I have attended some good ones as well as some that I wished I did not attend. Luckily, today I attended one in Houston that was excellent. The speakers were experienced. entertaining and informative. Additionally, I thought that the investigator that spoke is one that I will be working with in the future. The seminar confirmed to me that we do right for all our clients.

I have never attended a seminar that did not relate to criminal defense, but my friends that do civil tell me that theirs are a complete waste of time. I hope that is never the case for me.

Houston criminal court elevator guidelines

As a Houston Criminal Defense Lawyer I am astonised at the conversations people have while riding the elevator at the courthouse. For instance, this week one person admited on the elevator that he had smoked weed this past weekend. Not a good thing if you are defendant in Harris County. Also, another person while talking on his mobile phone that he messed up this time. Essentially, admiting to this crime. Even worse, a prosecutor was riding the elevator with us. Lucky for him the prosecutor told me that he would not follow him to court to tell court. While these two examples were not my clients they trouble me because people should not be talking about anything concerning their case. The elevators are riden by prosecutors, jurors, court staff and even judges on occassion. Just enjoy the ride and keep the talk down.